Mannina v. District of Columbia ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
VICTORIA MANNINA, )
)
Plaintiff, )
)
v. ) Case No.: 1:15-cv-931 (KBJ/RMM)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Victoria Mannina (“Plaintiff” or “Ms. Mannina”) filed a Motion to Compel
Production of Documents Withheld by Defendant as Privileged, or in the Alternative, for In
Camera Review of Withheld Documents (“Motion”). See generally Pl.’s Mot., ECF No. 83. In
that motion, Ms. Mannina challenges Defendant District of Columbia’s (“Defendant” or “the
District”) assertion of the deliberative process and attorney-client privileges to redact and
withhold several documents. On March 29, 2019, the Court issued an Order that partially
granted and partially denied the Motion. See ECF. No. 118. This Memorandum Opinion
provides the rationale for that ruling in greater detail.
BACKGROUND
I. Factual Background1
This case arises from the suicide of Paul Mannina (“Mr. Mannina”), while he was in the
custody of the District of Columbia Department of Corrections (“DOC”). Mr. Mannina was
arrested on June 7, 2013, after being admitted to a hospital emergency room with high levels of
1
Given the posture of the case, the Court relies on the facts alleged in the complaint.
alcohol, opiates, and Tylenol in his system and for a “change in mental state.” 2d Am. Compl.
¶¶ 14, 16, ECF No. 33. On June 13, 2013, Mr. Mannina was arraigned, before the D.C. Superior
Court, for one count of first-degree burglary while armed and one count of third degree sexual
abuse while armed. Id. ¶¶ 11, 18. The Pretrial Services Agency (“PSA”) officer, who had met
with Mr. Mannina prior to the arraignment, reported that Mr. Mannina had thoughts and attempts
regarding harming himself. Id. ¶ 18. The court denied release, and Mr. Mannina returned to
D.C. Superior Court on June 17, 2013 for a preventive detention hearing. Id. ¶¶ 19, 24. In an
updated report, the PSA officer restated concerns regarding Mr. Mannina’s attempts to harm
himself. Id. ¶ 24. The court ultimately ordered detention. Id. ¶ 25. On June 18, 2013, Mr.
Mannina committed suicide while in DOC custody, using a razor. Id. ¶ 35.
Ms. Mannina brings this action as Mr. Mannina’s widow and the representative of Mr.
Mannina’s estate. Id. ¶ 1. Ms. Mannina alleges that the District of Columbia violated Mr.
Mannina’s civil rights under 42 U.S.C. § 1983 by depriving him of his Fifth Amendment due
process rights and also raises tort claims under theories including negligence and wrongful death.
See id. ¶¶ 36–54. Several of those claims rest on the premise that the District failed to
adequately respond to or mitigate the risk that Mr. Mannina would attempt to commit suicide.
II. Relevant Procedural Background
The instant dispute concerns the District’s assertion of privilege to withhold and redact
records that were produced in response to Ms. Mannina’s informal discovery requests. Pursuant
to Federal Rule of Civil Procedure 34, Ms. Mannina served two sets of requests for production of
documents on the District, comprising twenty-five requests. 2 See Joint Status Report, Ex. E
2
The Scheduling Order allows each party to serve only twenty-five requests for production.
See Scheduling Order ¶ 2.d., ECF No. 23.
2
(“Def.’s Resp. to 1st Set RFP”), ECF No. 52-6 (filed under seal) (the District’s Responses to
Plaintiff’s First Set of Request for Production of Documents: Requests # 1–21) & Ex. F (“Def’s
Resp. to 2nd Set RFP”), ECF No. 52-7 (filed under seal) (the District’s Response to Plaintiff’s
Second Request for Production of Documents: Requests # 22–25). 3 The District responded to
these requests on December 19, 2016 and March 8, 2017, respectively, and produced additional
material in July 2017. See id.; see also Def.’s Opp’n to Pl.’s Mot. (“Def.’s Opp’n”) at 2, ECF
No. 85.
Ms. Mannina then continued to request information from the District, including between
March 2017 and May 2017, through a series of “informal discovery requests.” 4 See Def.’s
Opp’n at 3; Def.’s Notice Regarding Pl.’s Informal Doc. Requests (“Def.’s Notice I”) at 2, ECF
No. 58; Pl.’s Report to Ct. Regarding Informal Doc. Request Spreadsheet, Ex. 1, ECF No. 82-1.
Ms. Mannina contends that these additional requests correspond to and sought additional
information regarding her formal requests for production. See Pl.’s Notice Regarding Informal
Disc. Requests to Def. (“Pl.’s Notice I”), ECF No. 56; Pl.’s Notice Regarding Def.’s Deficient
Doc. Resps. (“Pl.’s Notice II”) at 3–4, ECF No. 68. The District contends that the informal
requests went “far beyond” Ms. Mannina’s formal document requests. Def.’s Notice I at 2.
Nevertheless, the District responded to Ms. Mannina’s informal requests, including those made
between March and May 2017. See Def.’s Opp’n at 3. The District initially produced records in
3
Exhibits E and F to the Joint Status Report (ECF No. 48) were filed under seal because Ms.
Mannina asserted that “certain of the exhibits consist of documents the District has marked
‘Confidential.’” Joint Status Report at 6 n.1, ECF No. 48; 1/17/2018 Minute Order (ordering the
filing under seal of the exhibits referenced in footnote 1 of the Joint Status Report, ECF No. 48).
The Court cites to the contents of Exhibits E and F as these documents are not marked
confidential.
4
On January 19, 2018, the Court ordered Ms. Mannina to “cease making additional informal
requests for production of documents.” Order at 5, ECF No. 53.
3
response to these informal requests in August and September 2017, and the District included a
privilege log with its September 2017 production. See id. In November and December 2017, the
District produced additional documents previously withheld, including a revised privilege log.
See id. The instant motion concerns documents that the District redacted and withheld on the
December 2017 privilege log. See Def.’s Sur-Reply to Pl.’s Mot. (“Def.’s Sur-Reply”) at 3, ECF
No. 88.
On October 27, 2017, the Honorable Ketanji Brown Jackson referred this matter to the
undersigned for management of discovery. See 10/27/2017 Min. Order; 10/27/2017 Random
Case Referral. After several status reports from the parties and a discovery status conference
held on January 17, 2018, the Court set a schedule to assist the parties in clearly identifying the
scope and nature of their numerous discovery disputes. See Order, ECF No. 53. In response to
this Order, the parties filed several notices concerning Ms. Mannina’s interrogatories and
requests for production, and the District’s assertions of privilege. 5 After reviewing these filings,
the Court set a briefing schedule for the instant Motion to Compel, which has been fully briefed.
See 5/24/2018 Min. Order; see generally Pl.’s Mot.; Def.’s Opp’n; Pl.’s Reply to Def.’s Opp’n
(“Pl.’s Reply”), ECF No. 86; Def.’s Sur-Reply.
After briefing was completed, the Court requested additional information from the
District and reviewed the withheld documents in camera. See Order, ECF No. 99 (requesting
clarification and supplementation of affidavits); Order, ECF No. 110 (requesting additional
information and documents for in camera review); 3/18/2019 Min. Order (requesting
5
Notices regarding Defendant’s response to Plaintiff’s interrogatories may be found at ECF
Nos. 55, 59, and 63. Notices regarding Defendant’s assertion of privilege may be found at ECF
Nos. 57 and 62. Notices and responses regarding Plaintiff’s requests for production may be
found at ECF Nos. 56, 58, 63, 65, 68, and 82.
4
information regarding Docs. 74, 75, and 76). The District timely provided all requested
information, and Ms. Mannina responded to some of the District’s supplemental filings. See
Def.’s Resp. Regarding Privilege Designations, ECF No. 106; Def.’s Notice of Filing, ECF No.
111; Def.’s Resp. to Ct.’s Feb. 21, 2019 Order, ECF No. 114; Pl.’s Resp. to Def.’s Resp. to Ct.’s
Feb. 12 and Feb. 21, 2019 Order, ECF No. 115.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 37, a party propounding discovery may request an
order from the court compelling disclosure or discovery from the opposing party when, inter
alia, the opposing party does not produce documents requested under Rule 34. FED. R. CIV. P.
37(a)(3)(B)(iv). The moving party “bears the initial burden of explaining how the requested
information is relevant,” and of proving that the challenged discovery responses were
incomplete. Jewish War Veterans of the U.S., Inc. v. Gates, 506 F. Supp. 2d 30, 42 (D.D.C.
2007); Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007); see also
Alexander v. FBI, 193 F.R.D. 1, 3 (D.D.C. 2000). The non-moving party must then explain
“why discovery should not be permitted.” Jewish War Veterans, 506 F. Supp. 2d at 42.
When a party claims a privilege as the basis for withholding documents, that party “bears
the burden of proving the communications are protected.” Felder v. Washington Metro. Area
Transit Auth., 153 F. Supp. 3d 221, 224 (D.D.C. 2015) (internal quotation marks omitted)
(quoting In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998)). To carry that burden, the party
asserting the privilege must “present the underlying facts demonstrating the existence of the
privilege,” and “conclusively prove each element of the privilege.” In re Lindsey, 158 F.3d at
1270 (internal quotation marks and citations omitted). “[T]he proponent of a privilege . . . ‘must
offer more than just conclusory statements, generalized assertions, and unsworn averments of its
5
counsel.’” United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d 121, 127 (D.D.C. 2012)
(internal quotation marks omitted) (quoting In re Veiga, 746 F. Supp. 2d 27, 33–34 (D.D.C.
2010). If the party asserting the privilege fails to present sufficient facts to allow the Court to
“state with reasonable certainty that the privilege applies, this burden is not met.” FTC v. TRW,
Inc., 628 F.2d 207, 213 (D.C. Cir. 1980) (emphasis added).
DISCUSSION
I. What may be Compelled Under Rule 37
Federal Rule of Civil Procedure 37 governs motions to compel discovery responses, and
provides in relevant part that:
A party seeking discovery may move for an order compelling an
answer, designation, production, or inspection. This motion may be
made if:
...
(iv) a party fails to produce documents or fails to respond
that inspection will be permitted -- or fails to permit
inspection -- as requested under Rule 34.
FED. R. CIV. P. 37(a)(3)(B). By its express terms, Rule 37 only authorizes the Court to compel a
party to respond to document requests issued under Rule 34. See id. Consequently, “before a
party may succeed on a motion to compel discovery, that party ‘must first prove that it sought
discovery’ in the manner required by the rules of procedure.” Camiolo v. State Farm Fire &
Cas. Co., 334 F.3d 345, 359–60 (3d Cir. 2003) (quoting Petrucelli v. Bohringer & Ratzinger,
GMBH, 46 F.3d 1298, 1310 (3d Cir. 1995)); cf. Koehler v. United States, No. 90-2384 (RCL),
1991 WL 277542, at *2 (D.D.C. Dec. 9, 1991) (denying motion to compel where plaintiff sought
production of nine documents withheld as privileged where plaintiff had never requested those
documents through discovery).
As Ms. Mannina’s motion does not identify the specific discovery request or requests to
6
which the motion to compel pertains, the Court must first confirm whether and to what extent the
documents that the District has withheld or redacted as privileged correspond to a discovery
request propounded in accordance with Federal Rule of Civil Procedure 34. This task is
complicated by the fact that the District has produced numerous documents in response to Ms.
Mannina’s informal discovery requests whose relation to formally served discovery is in dispute.
Thus the Court must resolve two questions: (1) which document requests are at issue in the
parties’ dispute about privilege? and (2) does Rule 34 require the District to produce non-
privileged records in response to that document request?
The District asserts that its December 2017 privilege log contains all the disputed
privilege designations, and Ms. Mannina has not disputed that assertion. See Def.’s Sur-Reply at
3 & n.4. The District further explains that the documents on its December 2017 privilege log
were produced in August and September 2017 in response to informal document requests that
Ms. Mannina made between March and May 2017. See Def.’s Opp’n at 3. The parties’ email
correspondence from May 2017 reveals that the search terms used to identify the documents that
the District released in August and September 2017 match the search terms that Ms. Mannina
asked the District to use to find records responsive to certain April 2017 Informal Requests. 6
Accordingly, the Court concludes that the discovery requests at issue in this Motion
originate from Ms. Mannina’s April 2017 Informal Requests. See Def.’s Notice I, Ex. 1 at 7–8,
rows 25–29, ECF No. 58-1; Pl.’s Report to the Ct. Regarding Informal Doc. Req. Spreadsheet,
6
The referenced email, a 5/2/2017 e-mail from Plaintiff’s counsel to Defense counsel setting
forth proposed email search terms, was provided to the Court and opposing counsel by email on
March 14, 2018 (timestamp 10:56 PM) as one of the exhibits (Exhibit A) to Plaintiff’s Notice
Regarding Defendant’s Deficient Document Responses [ECF No. 68]. However, Plaintiff has
not yet sought to file these exhibits on the docket.
7
Ex. at 12–13 (“Informal Req. Chart”), ECF No. 82-1. The relevant April 2017 Informal
Requests sought:
 All email correspondence from 2008 to the present regarding suicide
prevention, training, and suicide attempts
 All email correspondence regarding the Leslie [sic] Hayes Report
from 2013 to present
 All email correspondence regarding the suicide task force from 2008
to present
 [A]ll email correspondence regarding the distribution, use, or
control of razor blades from 2008 to present
 All email correspondence regarding Paul Mannina from June 2013
to present
Informal Req. Chart at 12–13.
Next, the Court must determine whether any of these informal discovery requests fall
within the scope of Ms. Mannina’s formally served Rule 34 document requests. If the District
produced records voluntarily outside of any formal request, Rule 37 does not authorize the Court
to compel a further response regardless of the applicability of any privileges asserted by the
District. Ms. Mannina contends that the informal requests constitute a narrowing of her formal
discovery requests. See Pl.’s Reply at 3 (noting that “[i]n almost all instances, the so-called
informal requests were not new requests but merely attempts to prod the District to do what it
had failed to do”). The District disagrees, indicating that many of the informal requests were
outside the scope of the original requests. See Def.’s Opp’n at 3 & n.3 (citing Def.’s Responsive
Notice Regarding Pl.’s Doc. Reqs., ECF No. 65) (noting with respect to the informally requested
“nine years’ worth of emails” that “Plaintiff’s original requests plainly did not seek these
documents.”).
To evaluate which, if any, of the pertinent informal requests are within the scope of Ms.
Mannina’s formal document requests, the Court looks to the parties’ submissions identifying the
8
informal document requests and any allegedly corresponding formal document requests; the
District’s chart identifying the document requests to which the challenged documents on the
privilege log respond; and the content of each request. See Order at 4–5, ¶¶ D.1–D.7, ECF No.
53; Informal Req. Chart. The District has confirmed that most of the disputed documents were
produced in response to the April 2017 informal requests regarding (1) suicide prevention,
training, and suicide attempts; and (2) the DOC Suicide Prevention Task Force (“Task Force”).
See Notice of Filing, Ex. A (“Def.’s Suppl. Chart”), ECF No. 111-1. The remaining documents
were produced voluntarily because they were located through email search terms but were not
actually responsive to any of the informal requests. See Def.’s Resp. to Ct.’s Feb. 21, 2019
Order at 1, ECF No. 114.
Ms. Mannina alleges that the pertinent April 2017 informal requests correspond to the
following formal Requests for Production:
April 2017
Informal Request Alleged Corresponding Document Request No.
13 – All Documents identifying, discussing or describing Decedent’s
suicide.
15 – All Documents describing mental health and suicide prevention
training requirements for The District, including records of such
training.
16 – All Documents, written materials, and protocols used by The
District in mental health or suicide prevention training.
17 – All audits, reports or evaluations of the effectiveness of mental
All email correspondence
health and suicide prevention training of The District and employee of
from 2008 to the present
The District, including any evaluation identifying (a) whether the
regarding suicide prevention,
required training was effective; (b) whether the required training failed
training, and suicide attempts.
in any way to meet The District’ requirements; (c) whether Defendant
met its own training requirements; (d) what criticisms or failures The
District identified in its mental health and suicide training; (e)
identifying any Person or Persons who received mental health and
suicide prevention training; (f) identifying any Person or Persons who
received mental health and suicide prevention training but did not
receive all of the required training; and (g) any Person or Persons who
should have received mental health and suicide prevention training but
did not receive it.
9
April 2017
Informal Request Alleged Corresponding Document Request No.
13, 15, 16, 17
See supra
6 - All Documents and Communications, whether in Person, by
All email correspondence
telephone, or by some other means, whether in a discussion, meeting
regarding the suicide task
or other setting, relating to the subject matter of this litigation, the
force from 2008 to present
Complaint, the Answer, the Documents requested herein, and/or the
Subject Products, between, among, by, or with any Persons, including
but not limited to: Defendants; Defendants’ employees, former
employees, agents, and/or representatives; and customers or users.
See Informal Req. Chart at 12, rows 25, 27; see also Def.’s Resp. to 1st Set RFP, ECF No. 52-6. 7
The Court agrees that both informal requests are within the scope of at least one formal
document request, and therefore, may be compelled; however, the Court makes this
determination without deciding which formal request(s), as Plaintiff failed to make this argument
in her briefing. Therefore, the District has an obligation to produce the non-privileged
documents responsive to those requests and may be compelled to produce or un-redact any
improperly withheld documents.
Several privilege log entries concern documents that “were not directly responsive to the
informal requests,” and therefore are outside the scope of Rule 37. Def.’s Resp. to Ct.’s Feb. 21,
2019 Order at 1, ECF No. 114. Although Ms. Mannina contends that the fact that the District
found these documents and included them on the privilege log proves that they are responsive to
a document request, she has neither identified the formal or informal document requests to which
those documents pertain, nor provided any evidence that rebuts the District’s description of its
search and production. See Pl.’s Resp. to Def.’s Resp. to Ct.’s Orders of Feb. 12 & Feb. 21,
2019 at 1–2, ECF No. 115. As the District voluntarily produced those documents, the Court
7
See supra n.3.
10
cannot compel their production even if they are not privileged. Accordingly, the Court will not
reach the merits of the District’s assertion of privilege regarding the following documents:
 Documents 53, 80–96.
 Documents 33, 34, 41, 45, 51–52, 67, 101–104.
See Notice of Filing, Ex. A, ECF No. 111-1 (entries marked as “None” in the column labeled
“Informal Request”); Def.’s Resp. to Ct.’s Feb. 21, 2019 Order, ECF No. 114. The chart below
consolidates and identifies the remaining disputed documents considered by the Court and those
identified as outside the scope of Rule 37.
Privilege Asserted Disputed and Considered Disputed but Outside Scope
Deliberative Process 1–6, 18, 32, 35–39, 50, 578 53, 80–96
14–16, 19, 21, 25–27, 29,
33–34, 41, 45, 51–52, 67,
Attorney-Client 46–48, 54–56, 64–65, 74–79,
101–104
99–100
II. Adequacy of the Privilege Log
Ms. Mannina also challenges the adequacy of the privilege log entries supporting the
District’s assertions of the deliberative process privilege and the attorney-client privilege. See
Pl.’s Mot., Mem. in Supp. of Pl.’s Mot. (“Pl.’s Mem”) at 16–18, ECF No. 83-1. A privilege log
must describe the withheld information “in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim.” F ED. R. CIV. P. 26(b)(5).
Specifically, for each document withheld pursuant to a privilege, the log should “state the basis
upon which the privilege is claimed, the subject matter, number of pages, author, date created,
and the identity of all persons to whom the original or any copies of the document were shown or
8
Although the Privilege Log includes Document 16, the “Code for Objections” column
shows that Ms. Mannina objects only to the attorney-client privilege designation on this
document. Accordingly, the applicability of the deliberative process privilege to Document 16 is
not before the Court.
11
provided.” Loftin v. Bande, 258 F.R.D. 31, 33 (D.D.C. 2009) (internal quotation marks and
citation omitted). Even if a party fails to provide a privilege log that meets those requirements,
courts rarely deem the privilege waived. See TIG Ins. Co. v. Firemen’s Ins. Co. of Washington,
D.C., 718 F. Supp. 2d 90, 97 (D.D.C. 2010) (“[T]he court generally does not deem a party to
have waived a privilege because it did not provide an adequate privilege log.”); Loftin, 258
F.R.D. at 33 (noting that inadequate descriptions “do not result in a wholesale forfeiture of
defendant’s claim of privilege”); see generally United States v. Philip Morris Inc., 347 F.3d 951,
954 (D.C. Cir. 2003) (“[W]aiver of a privilege is a serious sanction most suitable for cases of
unjustified delay, inexcusable conduct, and bad faith.”).
The District’s privilege log and the declaration of Beth Mynett, together, provide enough
information to allow the Court to evaluate the District’s assertion of the deliberative process
privilege. See Def.’s Responsive Notice Regarding Assertions of Privilege, Ex. 2, ECF No. 62-3
(“Declaration of Beth Mynett Dated January 19, 2018” produced with the District’s privilege
log). “A common practice of agencies seeking to invoke the deliberative process privilege is to
establish the privilege through a combination of privilege logs, which identify specific
documents, and declarations from agency officials explaining ‘what the documents are and how
they relate to the [agency] decision.’” Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 267
F.R.D. 1, 4 (D.D.C. 2010) (alteration in original) (quoting NLRB v. Jackson Hosp. Corp., 257
F.R.D. 302, 308 (D.D.C. 2009)). These filings must enable the Court “to determine . . . that the
documents withheld are (1) predecisional; (2) deliberative; (3) do not ‘memorialize or evidence’
the agency’s final policy; (4) were not shared with the public; and (5) cannot be produced in a
redacted form.” U.S. Dep’t of the Treasury v. Pension Benefit Guar. Corp., 222 F. Supp. 3d 38,
42–43 (D.D.C. 2016) (quoting Ascom Hasler, 267 F.R.D. at 4 (internal quotation marks
12
omitted)); see also Huthnance v. District of Columbia, 268 F.R.D. 120, 123 (D.D.C. 2010).
Here, the District’s privilege log provides Bates number start and end ranges, the date of
production, the date of the document, whether the document was redacted or withheld, and a
descriptive narrative describing the redactions or withheld document. Therefore it provides
sufficient information for the Court to evaluate the five factors noted above. See Pension Benefit
Guar. Corp., 222 F. Supp. 3d at 42–43.
The District’s privilege log also adequately articulates a basis for asserting the attorney-
client privilege. See infra Part V (setting forth the legal standard for asserting the attorney-client
privilege). The log clearly identifies the documents, the senders and recipients where applicable,
and includes a descriptive narrative describing the reasons for redacting or withholding each
document. The unredacted portions of documents provide additional context and information to
evaluate the privilege identified on the Privilege Log. See Def.’s Sur-Reply at 5–7. As the Court
also has copies of the disputed documents for in camera review, the Court has ample information
to evaluate the District’s assertion of the attorney-client privilege.
In sum, the District has adequately described the withheld documents and the basis for its
assertions of privilege. Accordingly, the Court DENIES Plaintiff’s request that the District be
deemed to have waived its privileges as a sanction for the alleged deficiencies in the District’s
privilege log. See Pl.’s Mem. at 18.
III. Deliberative Process Privilege
The District asserts the deliberative process privilege over two categories of documents
— documents and information related to the Task Force; and documents and information related
to a third-party healthcare contract. See generally Def.’s Resp. Regarding Privilege
Designations, Ex. 1., Decl. of Beth Mynett Dated Nov. 20, 2018 (“Mynett Decl.”), ECF No. 106-
13
1 & Ex. 2, Decl. of Gitana Stewart-Ponder (“Stewart-Ponder Decl.”), ECF No. 106-2. The
District supports its assertion of privilege with the declarations of Beth Mynett, Medical Director
and Health Services Administrator for the DOC, and Gitana Stewart-Ponder, Deputy Director for
Administration of the DOC. See id. As discussed supra, Ms. Mannina has not proven that
Documents 53 and 80–96 — documents and information related to a third-party healthcare
contract that are addressed in Ms. Stewart-Ponder’s declaration — are within the scope of a Rule
34 discovery request; therefore the Court will not evaluate whether those documents are
privileged. Accordingly, the following analysis considers only the documents and information
related to the Task Force and identified supra as within the scope of formal discovery —
Documents 1–6, 18, 32, 35–39, 50, and 57.
The deliberative process privilege “covers documents reflecting advisory opinions,
recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dep’t of the Interior & Bureau of Indian Affairs v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 150 (1975)) (internal quotation marks omitted). This privilege “rests on the
obvious realization that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news,” and is designed to “enhance the
quality of agency decisions by protecting open and frank discussion among those who make
them within the Government.” Klamath, 532 U.S. at 8–9 (internal quotation marks and citations
omitted).
To qualify for the privilege, documents must be both “predecisional” and “deliberative.”
In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d 150, 159 (D.D.C. 2017); see also
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). A
14
document is predecisional if it was “prepared in order to assist an agency decisionmaker in
arriving at his decision, rather than to support a decision already made.” Petroleum Info. Corp.,
976 F.2d at 1434 (internal quotation marks omitted) (quoting Renegotiation Bd. v. Grumman
Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)); see also Judicial Watch, Inc. v. Dep’t of Def.,
847 F.3d 735, 739 (D.C. Cir. 2017); Cobell v. Norton, 213 F.R.D. 1, 4–5 (D.D.C. 2003). Thus a
predecisional document must “precede[], in temporal sequence, the ‘decision’ to which it
relates.” Senate of the Commonwealth of Puerto Rico ex rel. Judiciary Comm. v. U.S. Dep’t of
Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); see also Nat’l Sec. Archive v. CIA, 752 F.3d 460,
463 (D.C. Cir. 2014) (“To be pre-decisional, the communication . . . must have occurred before
any final agency decision on the relevant matter.”). A document is “deliberative” if it “is
intended to facilitate or assist development of the agency’s final position on the relevant issue.”
Nat’l Sec. Archive, 752 F.3d at 463. Moreover, the deliberative process privilege is qualified,
and even documents that reflect agency officials’ deliberative opinions may be disclosed if “the
private need for disclosure outweighs the public interest in non-disclosure.” In re Anthem, 236
F. Supp. 3d at 159 (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)).
A. Whether the District Properly Invoked the Deliberative Process Privilege
To assert the deliberative process privilege, a party must submit: (1) a formal claim of
privilege by the head of the relevant department; (2) based on actual personal consideration by
that official; and (3) a detailed specification of the information for which the privilege was
claimed and why it properly falls within the scope of the privilege. Landry v. FDIC, 204 F.3d
1125, 1135 (D.C. Cir. 2000) (citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395,
399 (D.C. Cir. 1984)) (noting requirements of the deliberative process privilege). If a party’s
15
initial assertion of the deliberative process privilege lacks sufficient information, the party may
supplement the record to cure the deficiency. See Cobell, 213 F.R.D. at 8.
Although the District failed to provide sufficient information in its initial assertion of the
privilege, the revised declaration of Beth Mynett cures the initial deficiencies. As the Medical
Director and Health Services Administrator for the DOC, Mynett Decl. ¶ 1, Ms. Mynett qualifies
as the “head of department” for purposes of asserting the deliberative process privilege and has
“sufficient rank” to assert the deliberative process privilege “in a deliberate, considered, and
reasonably specific manner.’” Landry, 204 F.3d at 1135–36 (internal quotation marks and
citation omitted) (finding that “it would be counterproductive to read ‘head of the department’ in
the narrowest possible way”); see Mynett Decl. ¶ 2. In her declaration, Ms. Mynett formally
asserts the deliberative process privilege, based on her personal review of the material, and
specifies why the privilege was claimed for the disputed documents. See Mynett Decl. ¶¶ 3, 5–
10; see also Landry, 204 F.3d at 1135. Accordingly, the District has properly invoked the
deliberative process privilege.
B. Whether the District has Waived the Privilege
Waiver of the deliberative process privilege occurs where privileged material has been
voluntarily disclosed to “unnecessary third parties,” with such waiver extending only to “the
document or information specifically released, and not for related materials.” In re Sealed Case,
121 F.3d at 741; see, e.g., Heffernan v. Azar, 317 F. Supp. 3d 94, 120 (D.D.C. 2018); Elec.
Frontier Found. v. U.S. Dep’t of Justice, 890 F. Supp. 2d 35, 46 (D.D.C. 2012). Ms. Mannina
bears the burden to “produc[e] at least some evidence that the deliberative process privilege has
been waived.” Heffernan, 317 F. Supp. 3d at 120 (internal quotation marks omitted) (quoting
Elec. Frontier Found., 890 F. Supp. 2d at 46).
16
1. Document No. 2
In a footnote to her Motion, Ms. Mannina asserts that the District waived any privilege
applicable to the July 22, 2013 minutes of the Suicide Prevention Task Force by releasing the
minutes. See Pl.’s Mem. at 12 & n.6 (referring to Exhibit B of ECF No. 48). This document is
identical to Document 2 in the Privilege Log, over which the District has asserted the
deliberative process privilege and which Plaintiff seeks to compel. See Def.’s Sur-Reply, Ex. 1
(“Privilege Log”), Doc. No. 2, ECF No. 88-19 (noting that the document was “inadvertently
produced to Plaintiff in unredacted form at D.C. 1.15-cv-00931-012521 to 012525”); Joint Status
Report [ECF No. 48], Ex. B, ECF No. 52-2 (filed under seal) (document with Bates range DC
1.15-cv-00931-012521 to 012525). The District asserts that its disclosure of Document 2 was
inadvertent, and Ms. Mannina does not contend otherwise. See Privilege Log, Doc. No. 2
(District’s Response column). Accordingly, the Court will consider whether the District’s
inadvertent release waived the deliberative process privilege for the redacted sections of
Document 2.
This Circuit has not directly addressed the effect of an inadvertent disclosure on a party’s
ability to assert the deliberative process privilege, as precedent regarding the waiver of the
deliberative process privilege concerns “voluntary” disclosures. See, e.g., In re Sealed Case, 121
F.3d at 741–42 (concluding that agency’s voluntary disclosure of documents waived the
deliberative process privilege). In other jurisdictions, the effect of inadvertent disclosures of
deliberative material remains an “unsettled” area of law. Texaco Puerto Rico, Inc. v. Dep’t of
Consumer Affairs, 60 F.3d 867, 885 n.8 (1st Cir. 1995) (noting that “the question of waiver . . . is
9
To increase legibility, the District gave the Court an Excel version of the PDF docketed as
ECF No. 88-1.
17
apparently unsettled”); Kennedy v. City of New York, No. 05 CV 246 (BMC), 2006 WL 8439096,
at *6 n.3 (E.D.N.Y. Oct. 16, 2006) (“The Court notes that whether the deliberative process
privilege may be waived through inadvertent disclosure is an unsettled area of law.”), aff’d, No.
CV-05-0246 (BMC) (CLP), 2006 WL 8439095 (E.D.N.Y. Dec. 7, 2006). Federal Rule of
Evidence 502 addresses the effect of inadvertent disclosures of attorney-client privileged or work
product material, and courts have disagreed about whether Rule 502(b)’s principles should be
extended to the deliberative process privilege. Compare Bayliss v. New Jersey State Police, 622
F. App’x 182, 186 (3d Cir. 2015) (citing FED. R. EVID. 502(b)) (finding that inadvertent
disclosure did not waive the deliberative process privilege where “the State took reasonable steps
in preventing and rectifying the disclosure”) with United States v. Broombaugh, No. 14-40005-
10-DDC, 2017 WL 2734636, at *5–6 (D. Kan. June 26, 2017) (determining that Rule 502 does
not extend to waivers of deliberative process privilege). Cf. In re Fed. Nat’l Mortg. Ass’n Sec.,
Derivative, & “ERISA” Litig., No. 04-1639 (RJL), 2009 WL 10708594, at *1 n.2 (D.D.C. June
9, 2009) (citing In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989)) (applying Rule 502(b) to
deliberative process privilege, but declining to decide whether Rule 502(b) applies only to
attorney-client and work product privilege claims and whether a strict waiver rule applies to
deliberative process privilege).
The Court concludes that the District has not waived its ability to assert the deliberative
process privilege over Document 2. As the text of Rule 502(b) expressly references only the
attorney-client privilege and work product protection, that rule’s framework should not be
extended to evaluate the effect of inadvertent disclosures of material subject to the deliberative
process privilege. See FED. R. EVID. 502. Instead, the Court concludes that only intentional
disclosures of information subject to the deliberative process privilege operate to waive that
18
privilege. Unlike the public release of a document, an inadvertent disclosure does not reflect an
intent to abandon a privilege. Making waiver the automatic consequence of such a mistake
would undermine the important interests that the deliberative process privilege serves. As Ms.
Mannina has not proven that the District’s release was intentional, the District may assert the
deliberative process privilege over Document 2 despite its inadvertent disclosure of the
document. See generally Redland Soccer Club, Inc. v. Dep’t of Army of U.S., 55 F.3d 827, 856
(3d Cir. 1995) (finding that the district court did not err when it found that the United States’
disclosure of documents in discovery did not waive the deliberative process privilege as the
“disclosure was ‘inadvertent’ and did not qualify as a ‘voluntary’ waiver”).
2. Document No. 50
Although Ms. Mannina does not assert that the District has waived the deliberative
process privilege for Document 50, the record demonstrates that the District has released that
document to Ms. Mannina in unredacted form. See Privilege Log, Doc. No. 50 (noting that the
document was “identical to [a] report produced in unredacted form” and providing Bates ranges).
The District does not suggest that its production of that document was inadvertent, and simply
states that the report was “produced in unredacted form . . . on September 7, 2017.” Privilege
Log, Doc. No. 50 (District’s Response). This voluntary disclosure waived the deliberative
process privilege for Document 50. See In re Sealed Case, 121 F.3d at 741–42.
C. Application of the Privilege
The Court next considers whether the deliberative process privilege protects the
documents the District has redacted and withheld. The disputed documents encompass four
categories of records: (1) minutes from a July 22, 2013 Task Force meeting (Document 1),
19
Mynett Decl. ¶ 6; (2) drafts of the Task Force’s report (Documents 2, 3–6, 32) 10, id. ¶ 7; (3)
emails between Task Force members (Documents 18, 32, 35–39), id. ¶ 8;11 and (4) emails
between then-DOC Director Tom Faust and Christopher Murphy, Chief of Staff to Mayor
Vincent Gray (Document 57), id. ¶ 10.12 The following analysis addresses whether the
documents are predecisional and deliberative, and whether they have been adopted as formal
agency policy and thereby lose the privilege protection. See In re Anthem, 236 F. Supp. 3d at
159.
1. Whether the Redacted or Withheld Documents Qualify for the Privilege
a. Predecisional13
First, the documents are predecisional. Ms. Mynett’s declaration indicates that she
reviewed drafts of the meeting minutes, drafts of the Task Force’s report, and emails between the
Task Force members, and that the redacted information and documents are “provisional and not
yet adopted as agency policy.” Mynett Decl. ¶¶ 6–9. In addition, “[a]t the time the draft minutes
were prepared, the Task Force had not yet adopted recommendations and accordingly DOC had
not yet considered and decided which policy changes to adopt.” Id. ¶ 9; see also Nat’l Sec.
Archive, 752 F.3d at 463 (“To be pre-decisional, the communication . . . must have occurred
10
Although Ms. Mynett’s declaration includes Document 50 in this category, the Court has
determined that the District waived the privilege for this document.
11
Although Ms. Mynett’s declaration includes Document 16, the Privilege Log shows that
Ms. Mannina objects only to the attorney-client privilege designation on this document.
Accordingly, the applicability of the deliberative process privilege to Document 16 is not before
the Court. See also supra n.9. In addition, although Ms. Mynett’s declaration includes
Documents 35–39, as earlier discussed, the Court finds these to be outside the scope of Rule 37.
12
As discussed supra, the Court declines to consider Documents 53, and 80 through 96,
which are emails addressed in Ms. Stewart-Ponder’s declaration. See Stewart-Ponder Decl. ¶ 5;
supra Part I.
13
This analysis applies to Documents 1–6, 18, 32, 35–37, 57. Ms. Mannina challenges
whether these documents are predecisional. See Privilege Log (Code for Objections).
20
before any final agency decision on the relevant matter.”). Further, the July 2013 emails sent
between then-DOC Director Tom Faust and Christopher Murphy, Chief of Staff to then-D.C.
Mayor Vincent Gray, were also predecisional because “[a]t the time these emails were written,
the District had not decided whether to advocate for the proposed policy.” Mynett Decl. ¶ 10.
Ms. Mannina challenges the predecisional nature of nearly every document that the
District has redacted or withheld. See generally Privilege Log (Code for Objections). Ms.
Mannina appears to argue that several of these documents are not predecisional because the
District did not reference a specific policy decision. See id., Doc. Nos. 1–6, 18, 32, 35–37, 57
(entries noting Objection 6 to deliberative process privilege). “[T]o approve exemption of a
document as predecisional, a court must be able to pinpoint an agency decision or policy to
which the document contributed.” Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998)
(quoting Senate of the Commonwealth of Puerto Rico, 823 F.2d at 585) (internal quotation marks
omitted). Although “a document need not contribute to a single, discrete decision,” an agency
must “identify[ ] the decisionmaking process to which [the document] contributed.” Nat’l Sec.
Archive, 752 F.3d at 466 (alteration in original) (internal quotation marks and citation omitted);
see also Sears, 421 U.S. at 151 n.18. Accordingly, “[t]he agency bears the burden of
establishing the character of the decision, the deliberative process involved, and the role played
by the documents in the course of that process.” Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir.
1983) (citing Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)),
opinion vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984). The District has
satisfied this requirement here.
Ms. Mynett’s declaration indicates that the Task Force discussed policy proposals — in
the meeting minutes, draft reports, and emails — related to suicides and suicide attempts in the
21
D.C. Jail, and that such discussions assisted the Task Force in determining what policy
recommendations to make for the D.C. Jail. See Mynett Decl. ¶ 6, 9. Moreover, the unredacted
and released portions of Document 1 clearly reveal the policy purpose and objective of the Task
Force. Likewise, the privilege log indicates that the July 2013 email exchange between Director
Faust and Chief of Staff Murphy covered “plans to review suicide prevention protocols within
DOC,” and that the redacted portion covered a “policy proposal.” Privilege Log, Doc. No. 57
(Description column). Ms. Mynett’s declaration further elaborates that the emails “contain
policy suggestions pertaining to local courts.” Mynett Decl. ¶ 10. The unredacted portions of
Document 57 also demonstrate that these emails included information regarding the genesis of
the Task Force. See Doc. No. 57. Accordingly, the District has satisfactorily “establish[ed] the
character of the decision, the deliberative process involved, and the role played by the documents
in the course of that process.” Paisley, 712 F.2d at 698.
Ms. Mannina also argues that inter-agency input “is not pre-decisional.” Privilege Log,
Doc. No. 36 (Mannina’s Objection). To the contrary, “[t]he deliberative process privilege
protects from disclosure inter– and intra–agency communications and documents generated
before a final decision.” Branch Ministries, Inc. v. Richardson, 970 F. Supp. 11, 14 (D.D.C.
1997).14 The deliberative process privilege seeks to protect aspects of the “process by which
governmental decisions and policies are formulated,” Klamath, 532 U.S. at 8, and
communications from interested stakeholders or inter-agency partners may be part of the
decision-making process. Accordingly, to the extent that Ms. Mannina bases her objections on
14
Much of the case law regarding the deliberative process privilege has developed in the
context of Freedom of Information Act (“FOIA”) litigation. FOIA Exemption 5 expressly
exempts from disclosure “inter-agency or intra-agency memorandums or letters that would not
be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5)
22
the fact that redacted information or documents originated from one of DOC’s inter-agency
partners, her argument fails.
Finally, Ms. Mannina’s general, conclusory denial that documents are predecisional does
not overcome Ms. Mynett’s testimony. The pertinent emails, minutes, and documents predate
final action and are predecisional. See Nat’l Sec. Archive, 752 F.3d at 463.
b. Deliberative15
Second, the disputed redactions and withheld documents are deliberative. Ms. Mynett
has explained that the redacted and withheld material reflects communications and documents
that “helped the Task Force decide which policy changes they would recommend for
implementation at the DC Jail.” Mynett Decl. ¶ 9. Thus the documents are inherently
deliberative, i.e., “communication[s] . . . intended to facilitate or assist development of the
agency’s final position on the relevant issue.” Nat’l Sec. Archive, 752 F.3d at 463. The Court’s
in camera review of the communication between Mr. Faust and Mr. Murphy (Document 57)
confirms that the redacted information also is deliberative. See Huthnance, 268 F.R.D. at 123
(noting that “the document must be a direct part of the deliberative process in that it makes
recommendations or expresses opinions on legal or policy matters.” (internal quotation marks
omitted) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).
Ms. Mannina contends that several documents — the documents reflecting July 22, 2013
meeting minutes, the drafts of the task force report, and certain documents categorized as emails
between the Task Force — are “Factual, not deliberative.” See Privilege Log (Key and Code for
Objections). The District asserts that it released factual information. See Def.’s Opp’n at 8.
15
This analysis applies to Documents 1–6, 18, 32, 35. Ms. Mannina challenges whether
these documents are deliberative. See Privilege Log (Code for Objections).
23
Under the deliberative process privilege, “factual information generally must be disclosed, but
materials embodying officials’ opinions are ordinarily exempt.” Petroleum Info. Corp., 976 F.2d
at 1434; see In re Sealed Case, 121 F.3d at 737. The D.C. Circuit employs a “functional
approach” to determine whether information is factual or embodies an opinion and considers
whether “the selection or organization of facts is part of an agency’s deliberative process.”
Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 243 F. Supp. 3d 155, 164–65
(D.D.C. 2017) (internal quotation marks omitted) (quoting Ancient Coin Collectors Guild v. U.S.
Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011)). The privilege shields factual information if
it “is so inextricably intertwined with the deliberative sections of documents that its disclosure
would inevitably reveal the government’s deliberations.” In re Sealed Case, 121 F.3d at 737.
“This is so because the privilege serves to protect the deliberative process itself, not merely
documents containing deliberative material.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537
(D.C. Cir. 1993); see also Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 926 F. Supp. 2d
121, 136 (D.D.C. 2013).
The Court has applied those principles to determine whether the District improperly
withheld factual material, and concludes as follows:
 Document 1 — In the privilege log, the District states that factual information was
produced and that redactions were “restricted to a section of the document titled
‘Longer-Term Suicide Prevention Strategies Undergoing Consideration.” Privilege
Log, Doc. 1 (District’s Response). The Court’s in camera review of Document 1 is
consistent with the District’s representations.
 Document 2 — The Court has seen at least two different redacted versions of this
document, including as an attachment to an earlier filed Joint Status Report from
Plaintiff (ECF No. 48).16 Based on the Court’s in camera review of Document 2, the
redacted version provided as Exhibit B1 to the status report properly redacts
16
Ms. Mannina provided a version of Document 2 as an attachment to the Joint Status
Report filed by parties. See Joint Status Report [ECF No. 48], Ex. B1, ECF No. 52-3 (filed
under seal) (Bates No. DC-1.15-cv-00931-012533–12537).
24
information as deliberative process privileged, including factual information, that “is
so inextricably intertwined with the deliberative sections,” that if revealed, would
“reveal the government’s deliberations.” In re Sealed Case, 121 F.3d at 737;
Mapother, 3 F.3d at 1537–38.
 Documents 3–6, 3217 — The District asserts that “[r]edacted material is either
evaluative discussion of recent suicides in the DC Jail or included in a section titled
‘Longer Term Suicide Prevention Strategies Undergoing Consideration.’” Privilege
Log, Doc. No. 3 (District’s Response). The Court’s in camera review indicates that
most of the redactions are consistent with this representation. However, the District
shall release the two sentences on Document 3 that begin on the last line of page 2 of
12 from “The National” and ends with “accommodation” in line 4 at the top of page 3
of 12, and shall also release the corresponding text in Documents 4–6 and 32.
 Document 18 — The District asserts that redacted material “proposes policy options
for suicide prevention that were still under consideration at the time.” Privilege Log,
Doc. No. 18 (Description column). The Court has reviewed the document in camera
and the redaction properly covers deliberative information.
Although the Privilege Log indicates that this document was withheld in full, the
copy of Document 18 provided for in camera review and the District’s privilege log
description of redacted material otherwise indicate that Document 18 was produced in
redacted form. In addition, the District’s Response in Column L, states that
Document 18 “is entirely included within” a produced document and provides Bates
ranges. It is unclear from the Privilege Log whether this means that Document 18
was produced in full within that production or with redactions. Moreover, as the
Court does not have a copy of the other produced document referenced, the
undersigned has no means to evaluate the District’s statement. Accordingly, by no
later than May 13, 2019 the District shall certify to the Court whether it has
previously produced in full Document 18; whether it had been produced in the form
provided for in camera review; and/or if it had been produced in some alternate form.
If the District has previously produced Document 18 in full, then it would be deemed
to have waived the privilege for Document 18. See supra Part III.B.2 (setting forth
analysis for waiver of privilege). If the District produced Document 18 in the
redacted form provided for in camera review, then the above analysis stands. Lastly,
if the District produced Document 18 in some other form, the District shall submit a
copy of Document 18 and the other produced document for in camera review, by no
later than May 13, 2019.
17
Documents 3 through 6, and Document 32, are duplicates of the same document. See
Privilege Log, Doc. No. 3–6, 32. Document 3 is Bates No. DC-1.15-cv-00931-012588 to
012599. See Privilege Log. Column L of the Privilege Log, which provides the District’s
Response, notes that Documents 4 through 6, and 32, are duplicates of this Bates range. See id.
25
 Document 35 — The District indicates that this email contains “recommendations on
suicide prevention policy and practices in DC Jail” that “were in the process of being
assessed and developed.” Privilege Log, Doc. No. 35 (Description column). Based
on the Court’s in camera review, this information is properly redacted as deliberative.
Moreover, the unredacted header of “Issues currently being assessed/developed”
reflects the deliberative nature of the information redacted.
2. Whether the District has Lost its Ability to Assert the Privilege by
Adopting the Policy Recommended in the Deliberative Documents? 18
Ms. Mannina contends that the deliberative process privilege does not apply because the
withheld and redacted documents formed the basis for a policy that the Department of
Corrections ultimately adopted. Pl.’s Reply at 5–6, 7–8 (arguing that “every document relates to
an adopted policy” because Ms. Mynett testified in her deposition that all of the
recommendations were adopted). “[E]ven if [a] document is predecisional at the time it is
prepared, it can lose that status if it is adopted, formally or informally, as the agency position on
an issue or is used by the agency in its dealings with the public.” Coastal States, 617 F.2d at
866; see also Pension Benefit Guar. Corp., 222 F. Supp. 3d at 44 (“If Treasury implemented the
opinions or analyses contained in these communications into its final policies, the documents
would not be protected from disclosure under the deliberative process privilege.”). Ms. Mannina
interprets that to mean that to be protected by the deliberative process privilege, the document
“must also be at variance with the policy that the agency adopts.” Pl.’s Reply at 5 (citing
Conservation Force v. Jewell, 66 F. Supp. 3d. 46, 60 (D.D.C. 2014)).
Precedent does not support Ms. Mannina’s belief that only documents contrary to later-
adopted policy are protected by the deliberative process privilege. An agency’s adoption of a
policy does not cause all deliberative documents consistent with that policy to automatically lose
18
This analysis applies to Documents 1–6, 18, 32, 35–39, 57. Ms. Mannina asserts this
objection for all disputed documents asserting the deliberative process privilege. See Privilege
Log (Code for Objections).
26
the protection of the deliberative process privilege. Instead, courts have narrowly applied this
privilege exception only to those documents that contain the precise language and policy that the
agency ultimately adopted or that present the reasoning the agency expressly relied upon when it
adopted its policy. See Judicial Watch, 847 F.3d at 739 (“To adopt a deliberative document, it is
not enough for an agency to make vague or equivocal statements implying that a position
presented in a deliberative document has merit; instead, the agency must make an ‘express[ ]’
choice to use a deliberative document as a source of agency guidance.”) (alteration in original)
(quoting Sears, 421 U.S. at 161); United States v. Philip Morris USA Inc., 218 F.R.D. 312, 318
(D.D.C. 2003) (“Neither the Supreme Court nor this Circuit has ever required disclosure of
agency documents which were merely ‘used’ by a decisionmaker or ‘reflect[ed] announced
agency policy,’ on the basis that they had been informally adopted.”); Heffernan, 317 F. Supp.
3d at 122–125. Thus, absent proof that the District expressly adopted the deliberative
documents, the privilege continues to apply.
With respect to the documents disputed here, Ms. Mynett unequivocally states that “[t]he
proposals discussed . . . are provisional and not yet adopted as agency policy.” Mynett Decl. ¶ 9.
The District also asserts that it released documents containing recommended changes that were
implemented. See Def.’s Opp’n at 8. Although Ms. Mannina provides examples of some
changes that allegedly have occurred, see Pl.’s Mem. at 12–13, she has not identified specific
policies that expressly adopt the statements or reasoning from predecisional deliberative
documents. Therefore, she has not rebutted Ms. Mynett’s declaration and fails to demonstrate
that the deliberative process privilege has been lost. See Judicial Watch, 847 F.3d at 739;
Afshar v. Dep’t of State, 702 F.2d 1125, 1143 n.22 (D.C. Cir. 1983); Philip Morris, 218 F.R.D. at
318.
27
3. Whether Ms. Mannina’s Need for the Documents Outweighs the Public
Interest in Non-Disclosure
Finally, Ms. Mannina argues that her need for the withheld and redacted documents
overcomes the privilege. The deliberative process privilege is qualified, and documents that
reflect agency officials’ deliberative opinions may be disclosed if “the private need for disclosure
outweighs the public interest in non-disclosure.” In re Anthem, 236 F. Supp. 3d at 159 (citing In
re Sealed Case, 121 F.3d at 737). When making that assessment, courts
balance the competing interests on a flexible, case by case, ad hoc
basis, considering such factors as the relevance of the evidence, the
availability of other evidence, the seriousness of the litigation or
investigation, the harm that could flow from disclosure, the
possibility of future timidity by government employees [should the
materials be disclosed], and whether there is reason to believe that
the documents would shed light on government misconduct.
Comm. on Oversight and Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112–13 (D.D.C. 2016);
see also In re Anthem, 236 F. Supp. 3d at 159. “The party seeking the documents bears the
burden of demonstrating that the balance of interests tips in his or her favor.” In re Anthem, 236
F. Supp. 3d at 159.
Ms. Mannina fails to articulate a need for the disputed documents that outweighs the
public interest in non-disclosure. Ms. Mannina argues generally that the withheld and redacted
documents contain “evidence [that] is highly relevant and unavailable elsewhere.” Pl.’s Mem. at
14. Although documents regarding the Suicide Task Force likely contain information relevant to
Ms. Mannina’s claims, Ms. Mannina has not demonstrated that she is unable to obtain the
relevant evidence through other means. See FED. R. CIV. P. 26(b)(1). Ms. Mannina deposed
“multiple witnesses who were directly involved in the investigation of Mannina’s suicide and in
changes in operational, custodial, and medical practices to improve assessment and treatment of
inmates or detainees at risk of suicide.” Def.’s Opp’n at 9 & n.6. According to the District,
28
these individuals included Ben Collins, the DOC investigator who prepared the DOC report on
Mr. Mannina’s suicide; Wanda Patten, Mr. Collins’s former supervisor and now-DOC Interim
Deputy Director of Operations; Beth Mynett, DOC Health Administrator; and Diana Lapp, Unity
Healthcare’s Deputy Chief Medical Officer. Id. at 9 n.6. The produced and redacted July 22,
2013 Task Force meeting minutes show that Ms. Patten, Ms. Mynett, and Ms. Lapp attended and
participated in that meeting; accordingly, they should be knowledgeable about that particular
meeting and other relevant Task Force discussions. See Doc. No. 2 (produced in redacted form
to Plaintiff). Thus, to the extent that Ms. Mannina has questions about the Task Force or its
meetings, she could have explored the topic through depositions.
Ms. Mannina contends that depositions and other sources would be insufficient because
she needs the underlying documents and the witnesses’ prior statements to question the
deponents, and that other sources lack the detail that she deems essential to prove her case. Pl.’s
Reply at 7. As an example, Ms. Mannina contends that in the Mynett deposition, documents
would have been helpful to “challenge her faulty memory and extremely vague and unhelpful
responses.” Id. However, Ms. Mannina offers nothing more than speculation that such “prior
statements and opinions” would elicit different responses from the individuals deposed. Id.; cf.
Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989)
(finding no abuse of discretion in denying discovery where plaintiff sought discovery as “an
opportunity to test and elaborate the affidavit testimony already entered” but failed to provide a
“reason to question the veracity of affiants”). That is insufficient to overcome the deliberative
process privilege.
29
IV. Self-Evaluative Privilege
The District also has asserted the self-evaluative privilege, which it mistakenly
characterizes as a subset of the deliberative process privilege. 19 See Def.’s Opp’n at 7. Ms.
Mannina contends that the District cannot assert the self-evaluative privilege because it failed to
include it on the privilege log and first raised the privilege in its opposition memorandum. See
Pl.’s Reply at 6. The Court has already found that the deliberative process privilege protects the
withheld and redacted documents — with the exception of the Court’s identification of the
properly redacted version of Document 2 and the release of two sentences of non-deliberative
factual information in Document 3. See supra Part III.C.1.b. Given that the self-evaluative
privilege “does not protect purely factual material appearing alongside self-critical analysis,” it
would not protect the line of factual information that was outside the scope of the deliberative
process privilege. English v. Washington Metro. Area Transit Auth., 323 F.R.D. 1, 11 (D.D.C.
2017) (internal quotation marks omitted) (quoting Felder, 153 F. Supp. 3d at 225). It is
unnecessary for the Court to determine whether the self-evaluative privilege applies to the
remaining disputed redactions and withheld documents because the deliberative process privilege
shields them from disclosure. Accordingly, the Court will not reach this issue.
V. Attorney-Client Privilege
Ms. Mannina also challenges many of the District’s assertions of attorney-client
privilege. See generally Privilege Log. As the party asserting the privilege, the District bears the
19
The self-evaluative privilege is distinct from the deliberative process privilege. See FTC v.
TRW, Inc., 628 F.2d 207, 210 (D.C. Cir. 1980) (discussing the “roots” of the self-evaluative
privilege and describing the creation of “a qualified privilege against disclosure was fashioned to
apply in all but ‘extraordinary circumstances’” (quoting Bredice v. Doctors Hosp., Inc., 50
F.R.D. 249, 251 (D.D.C 1970)). Thus, the District’s contention that the deliberative process
privilege includes the self-evaluative privilege is erroneous. See Def.’s Opp’n at 7–8.
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burden of proving “with reasonable certainty” that it applies and must provide sufficient
evidence to carry that burden. See In re Subpoena Duces Tecum Issued to CFTC WD Energy
Servs. Inc., 439 F.3d 740, 750–51 (D.C. Cir. 2006) (internal quotation marks omitted) (quoting
FTC v. TRW, 628 F.2d at 213); FTC v. Boehringer Ingelheim Pharm., Inc., 180 F. Supp. 3d 1, 16
(D.D.C. 2016) (noting that party asserting attorney client privilege must “‘adduce competent
evidence in support of its claims,’ something beyond ‘conclusory statements, generalized
assertions, and unsworn averments of its counsel’” (quoting In re Veiga, 746 F. Supp. 2d 27, 33–
34 (D.D.C. 2010))) aff’d, 892 F.3d 1264 (D.C. Cir. 2018). Ms. Mannina presents several general
arguments in support of her challenge, asserting that: (1) the District improperly asserts the
privilege for documents where Ms. Amato, the DOC’s General Counsel, was merely copied,
Pl.’s Mem. at 15; (2) Ms. Amato’s participation in Task Force meetings as “senior policy
advisor” precludes the attorney-client privilege from applying to documents pertaining to those
meetings, id. at 16; and (3) communications that pre-date June 2013 and the filing of the
complaint in this matter could not have involved the provision of legal advice. See id.
The attorney-client privilege exists “to protect not only the giving of professional advice
to those who can act on it but also the giving of information to the lawyer to enable him to give
sound and informed advice.” Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). The
privilege “is narrowly construed and is limited to those situations in which its purposes will be
served.” Coastal States, 617 F.2d at 862; see also In re Lindsey, 158 F.3d at 1272 (stating that
the attorney-client privilege shall be “strictly confined within the narrowest possible limits
consistent with the logic of its principle” (internal quotation marks and citation omitted)); In re
Sealed Case, 676 F.2d 793, 807 n.44 (D.C. Cir. 1982). The attorney-client privilege “protects
confidential communications made between clients and their attorneys when the communications
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are for the purpose of securing legal advice” or providing legal advice. In re Lindsey, 158 F.3d
at 1267 (citing In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)); see also In re Kellogg
Brown & Root, Inc. (KBR I), 756 F.3d 754, 757 (D.C. Cir. 2014). The provision or receipt of
legal advice need not be the sole purpose of the communication in order to trigger the privilege.
Instead, this Circuit applies the “primary purpose test,” which examines whether “one of the
significant purposes” of the communication was “to obtain or provide legal advice.” KBR I, 756
F.3d at 757–60.
The attorney-client privilege also protects certain communications between an agency or
in-house attorney and employees of the entity. See Upjohn, 449 U.S. at 389–94; Boehringer
Ingelheim Pharm., 180 F. Supp. 3d at 16 (observing that a lawyer’s status as in-house counsel for
a corporate entity “does not dilute the privilege” (internal quotation marks and citation omitted));
Coastal States, 617 F.2d at 281 (noting that it is “clear that an agency can be a ‘client’ and
agency lawyers can function as ‘attorneys’ within the relationship contemplated by the
privilege”). Specifically, the attorney-client privilege applies provided that “[t]he
communications at issue were made by [the company’s] employees to counsel for [the company]
acting as such, at the direction of corporate superiors in order to secure legal advice from
counsel.” Upjohn, 449 U.S. at 394 (footnote omitted); In re Sealed Case, 737 F.2d at 99; see
also Neuder v. Battelle Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000). “Similarly,
when a government attorney ‘act[s] more in the nature of a business advisor, legislator,
adjudicator, or regulator, the attorney-client privilege generally does not apply.’” A.N.S.W.E.R.
Coal. v. Jewell, 292 F.R.D. 44, 48 (D.D.C. 2013) (alteration in original) (citation omitted).
Accordingly, the entity seeking to assert the privilege must make “a clear showing” that the in-
house counsel acted in a “professional legal capacity” rather than for a purpose “outside the
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lawyer’s sphere.” In re Sealed Case, 737 F.2d at 99. Under the “primary purpose test,” the fact
that the communication also served a business purpose does not necessarily render the attorney-
client privilege inapplicable. KBR I, 756 F.3d at 759–60.
In certain circumstances, the attorney-client privilege also may apply to communications
in which all the participants are non-attorneys. If non-attorneys serve as “agents of attorneys in
internal investigations,” the privilege extends to communications made by and to those agents
provided that the communications are made to secure or provide legal advice. Id. at 758 (citing
FTC v. TRW, 628 F.2d at 212).
The Court has reviewed the challenged privilege assertions in camera, using the legal
framework set forth above. The chart attached to the Court’s Order issued on March 29, 2019
(“AC Review Chart’) contains the results of that review. 20 See Order, Attach. A, ECF No. 118-1.
For the reasons identified above, the Court will not evaluate the District’s assertion of the
attorney-client privilege to redact or withhold documents that were not responsive to Rule 34
discovery requests; accordingly, the AC Review Chart does not address Documents 33–34, 41,
45, 51–52, 67, 101–104. See supra Part I (excluding these documents from the Court’s analysis).
VI. Litigation Hold Letters, Preservation, and Allegations of Spoliation
Ms. Mannina also seeks to compel the District to produce litigation hold letters. See Pl.’s
Mem. at 5–8, 18–20; Pl.’s Reply at 8–9. In addition, Ms. Mannina, in her reply, raises issues
with a supplemental privilege log, preservation of documents, and spoliation. See Pl.’s Reply at
9–12. However, since the filing of this Motion, the Court set a separate briefing schedule for
Plaintiff to file a motion regarding alleged deficiencies in the District’s litigation holds and
20
The column labeled “Attorney-Client Privileged?” indicates whether the attorney-client
privilege applies to the information redacted or document withheld; and the “Rationale” column
provides the basis for the Court’s conclusion.
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preservation of records. See Order, ECF No. 94. As the issues raised in this Motion are
encompassed in that separate briefing, 21 and other filings before the Court, the Court DENIES
without prejudice Ms. Mannina’s Motion to the extent it seeks to compel litigation hold letters
and relief relating to alleged preservation issues and spoliation.
VII. Other Relief Requested
Finally, Ms. Mannina requests that the Court find that the District has waived all claims
of privilege due to alleged “discovery misconduct.” Pl.’s Mot. at 1. She further encourages the
court to find such waiver if the Court determines in its in camera review that the District’s non-
disclosure of documents “demonstrates a similar pattern of wrongful conduct.” Pl.’s Mem. at 21.
First, Ms. Mannina provides no legal basis for her request to sanction the District with complete
waiver of privileges. Second, as demonstrated by the Court’s analysis above and in Attachment
A to the Court’s March 29, 2019 Order, the Court has found no egregious instances of non-
disclosure. Rather, many of the portions of documents that the Court has ordered released have
already been released in redacted form. If anything, this demonstrates sloppy document review
practices, rather than a concerted effort or intent to withhold proper discovery from Plaintiff.
Accordingly, and lacking a legal basis to evaluate Plaintiff’s request, the Court DENIES
Plaintiff’s request to find that the District waived all privilege claims.
21
The relevant filings are: Pl.’s Mot. Regarding Def.’s Failure to Preserve and Discover
Evidence, and Spoliation of Evidence (“Pl.’s Mot. Regarding Evidence”), ECF No. 96; Def.’s
Mem. in Opp’n to Pl.’s Mot. Regarding Evidence, ECF No. 101; Pl.’s Reply in Supp. of Mot.
Regarding Evidence, ECF No. 107.
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CONCLUSION
For the foregoing reasons, the Court hereby GRANTS-IN-PART and DENIES-IN-PART
Plaintiff’s Motion to Compel [ECF No. 83]. A separate Supplemental Order will accompany this
Memorandum Opinion.
2019.05.06
Dated: May 6, 2019
17:47:21 -04'00'
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
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